Dis-Incorporating Corporate Social Responsibility

Abstract

Some years ago, a well-established legal scholar summarized the globalized world of economics as:

 “The distinctions between economic and political collectives become fuzzy in a world in which states become participants in the market and economic enterprises assume traditional governmental functions” (Backer 2008: 505; Friedman 2000: 14).
 
After the establishment of multinational corporations as fundamental global and globalizing actors namely in the period between the end of World War Two and the 1990ies, one can observe in particular how the role of state and state-based actors and private actors mixed, especially in transnational law-making. The goal of this work is to clarify this landscape, make it less “fuzzy” by using a legal theoretical analysis and by establishing, within transnational corporate law, those legal duties per default assigned to a corporation. In particular, the task is to evaluate which direction legal actors should take on the issue of corporate social responsibility, in order to render the transnational corporate legal landscape more consonant with its surrounding environments (Zamboni 2010).
This consideration as to the regulation of corporate social responsibility as a fundamental part of the regulation of corporate governance in general is based on two interconnected premises. The first has to do with the fact that after two major corporate collapses in the last decade (namely in 2002 and in 2008), one can observe a revival of the debate around the nature of corporate governance and whether corporations have a social responsibility towards actors others than their shareholders (Hill 2005: 397–398;Zumbansen 2002: 143). The second element stressing the importance of having an up-to-date regulation of corporate social responsibility in order to have a better corporate governance, is derived from the question of whether corporate social responsibility is (and/or should be) considered from a legal perspective as being part of corporate governance in general (Zerk 2006: 31).